The Issue The issues are as follows: Is the Respondent liable to the Petitioner for $140.00 for 3,500 pounds of unacceptable potatoes on Load number 15? Is the Respondent liable to the Petitioner for $1,792.00 for Load number 16? Does the contractual agreement provide for FOB payment or payment based upon delivered weight? Can the Respondent "back charge" the Petitioner for $964.06 freight charges, $60.00 for dumping charges, and $33.40 for U.S. Department of Agriculture inspection costs?
Findings Of Fact The Petitioner, Lee A. Maltby and Sons, Inc., doing business as Poa-Boy Farms, is a producer of agricultural products in Florida. The Respondent, Kenneth Rose Company, Inc., is a licensed dealer in agricultural products, pursuant to Chapter 604, Florida Statutes. The Respondent was bonded, pursuant to Chapter 604, Florida Statutes, as such a Florida dealer during the period of time between January 24, 1978 and May 23, 1978. On or about January 24, 1978, the Petitioner, as seller, and the Respondent, as buyer, entered into an executory contract for the Petitioner to deliver "10,000 CWT of chipping potatoes, 85 percent or better US. number 1," at $4.00 FOB. As to terms, the contract designated "usual." As to special terms, the contract stated "Potatoes will be paid on the basis of delivered weight as evidenced by a certified weight ticket prepared at the time and place of delivery." Shipment was "May, 1978 (Last week of April if possible)." On or about the same day, the Respondent entered into an executory contract with Cloud Produce, Inc. for the same shipment, excluding the "special terms." Undisputed testimony was that the price was at a rate of $.10 CWTFOB. Cloud Produce, Inc. was a corporation authorized to do business in the State of Florida as a dealer in agricultural products under Chapter 604, Florida Statutes. Cloud Produce, Inc. agreed to deliver the chipping potatoes to Frito- Lay, Inc., a corporation with a potato chip manufacturing plant in Louisville, Kentucky. The Respondent also contracted with Montgomery and Rose, Inc., a Florida corporation authorized to do business under the laws of the State of Florida as a truck broker, to transport the potatoes to Louisville, Kentucky. The broker contracted with an independent trucking firm known as "R & L" to transport and deliver the potatoes to Frito-Lay in Louisville, Kentucky. The potatoes designated as Load number 15 were delivered to Frito-Lay in Louisville, Kentucky, on May 18, 1978. There was no report to Petitioner that there was a problem with said load, and there was no USDA inspection made. Evidence submitted showed that 3,500 of the 43,620 pounds of potatoes contracted to be delivered were dumped. The potatoes designated as Load number 16 were loaded on an R & L truck late Friday, May 19, 1978. The R & L truck was weighed in Hastings, Florida, on May 19, 1978, passed a Florida inspection station on May 20, 1978, and arrived at the Frito-Lay plant in Louisville, Kentucky, at approximately 7:00 a.m. on May 23, 1978. The load of potatoes was rejected by Frito-Lay "due to wet breakdown." The report of Frito-Lay stated that the potatoes were in a very poor condition with rot from 30 to 80 percent. Frito-Lay ordered the R & L trucking company to remove the load from the Frito-Lay property due to its offensive odor. The Petitioner and the Respondent discussed the problem on May 23, 1978. The Petitioner requested that the Respondent re-route the potatoes to Muncie, Indiana. The Respondent was not able to get this instruction through to the trucking company before the load was dumped, and within hours, it informed the Petitioner that the potatoes were no good, that the expense was prohibitive, and that the potatoes had already been dumped. Part of the problem was the demand by Frito-Lay that the load be removed quickly because of the odor and leakage at the plant in Louisville, Kentucky, which adjoined a baseball field. The USDA Inspection Office was closed when called on May 23, 1978, but it inspected the load on May 24, 1978 and reported "Condition: Soft rot 90 percent, slimy soft rot, mostly in advanced, some in early stages. Remainder stock: Firm." The following transpired: The United States Department of Agriculture charged an inspection fee of $33.40 for its inspection of the potatoes on May 24, 1978. The USDA billed Frito-Lay, Frito-Lay billed Cloud Produce, Inc., and Cloud Produce, Inc. billed the Respondent for the inspection fee. R & L trucking company paid $60.00 for unloading the potatoes, Montgomery and Rose, Inc. paid R & L $60.00 for such unloading, plus $964.06 for hauling the potatoes to Louisville, Kentucky, and the Respondent paid this amount to Montgomery and Rose, Inc. The Respondent then "back charged" the Petitioner for the following: $140.00 for the load designated number 15; $1,792.00 for the value of the potatoes on Load number 16; $964.06 for freight charges; $60.00 dumping charges; and $33.40 inspection. These charges totaled $2,989.46, and this amount of money was retained by the Respondent as a set-off from the entire contract between the parties, which included Loan number 22, with which there was no problem. By letter to the Respondent dated July 25, 1978, the Petitioner demanded the money that is the subject of this hearing. The Petitioner stated that he did not believe that Load number 16 was his produce inasmuch as he had had no other complaints as to his produce from other receivers before or after said load. No evidence was introduced to substantiate the position of the Petitioner, and substantial evidence was introduced that Load number 16 was, in fact, the load that was ultimately dumped. The Petitioner presented a witness who testified that Montgomery and Rose, Inc. had salvaged a portion of Load number 16 after it was dumped. The Petitioner felt that it was unfair that one firm had made a profit from the Petitioner's loss. Montgomery and Rose, Inc. was not joined as a party. The Respondent presented undisputed testimony that it is customary to "charge back" a broker and a producer where the produce does not meet specifications. There was no evidence presented that the Petitioner was not familiar with the custom of the trade or the laws and regulations of the Perishable Agricultural Commodities Act, or that the Petitioner had reason to believe that it would not be liable for freight and brokerage charges if the potatoes were not sold. The contract between the parties merely stated that terms were "usual." The usual charges on such a transaction include USDA inspection fees, if needed, and freight and brokerages charges.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State of Florida, Department of Agriculture and Consumer Services, uphold the claim of the Petitioner against Respondent in the amount of $140.00 deducted for the price of potatoes delivered designated as Load number 15. It is further RECOMMENDED that a Final Order be entered discharging the Respondent and its surety from any further liability. DONE and ENTERED this 8th day of June, 1979, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1979. COPIES FURNISHED: Ronald E. Clark, Esquire P.O. Drawer V Palatka, FL 32077 Alan B. Fields, Jr., Esquire P.O. Drawer F Palatka, FL 32077 Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Room 530, Carlton Building Tallahassee, FL 32301
The Issue Does Respondent, Ynnor Distribution Group, Inc., owe Petitioner, William E. Gable, Jr., d/b/a Gable Enterprises, $13,430.02 for the sale of four shipments of watermelons?
Findings Of Fact On July 17, 2001, Mr. Gable sold Ynnor 42,330 pounds of watermelon for $3,128.19. (Exhibit 1) On July 17, 2001, Mr. Gable sold Ynnor 42,740 pounds of watermelon for $3,150.70. (Exhibit 2) On July 19, 2001, Mr. Gable sold Ynnor 46,283 pounds of watermelon for $4,165.47. (Exhibit 3) On July 24, 2001, Mr. Gable sold Ynnor 44,540 pounds of watermelon for $2,985.70. (Exhibit 4) The total amount Ynnor owed Mr. Gable was $13,430.02. (Exhibit 4) There was no payment on the account by Ynnor. Mr. Gable called the recipient of the watermelons. They were all received in good shape and payment for the watermelons was made by the recipient to Ynnor. Ynnor did not attend the hearing. No evidence was received on the amount Ynnor alleged as a counterclaim.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter its final order finding that Respondent, Ynnor Distribution Group, Inc., owes Petitioner, William E. Gable, the amount of $13,430.02. DONE AND ENTERED this 27th day of November, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 2002. COPIES FURNISHED: Kathy Alves Fidelity & Deposit Company of Maryland Post Office Box 87 Baltimore, Maryland 21203 Ronald S. Booth, Sr. Ynnor Distribution Group, Inc. Post Office Box 1202 Winter Haven, Florida 33882-1202 William E. Gable, Jr. Gable Enterprises 6511 Bradley Road Marianna, Florida 32448 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services Mayo Building 407 South Calhoun Street, Mail Stop 38 Tallahassee, Florida 32399-0800
Findings Of Fact Upon consideration of the oral and documentary evidence produced at hearing, the following relevant facts are found: At all times pertinent to this proceeding, Respondent was licensed to practice optometry by the State of Florida, Board of Optometry. On or about May 8, 1980, Respondent entered into a lease agreement with Cole National Corporation to lease 154 square feet of space as an optometric office in the location of the retail store of Sears, Roebuck and Co. at 1420 Northwest 23rd Boulevard, Gainesville, Florida. Respondent practiced in that location approximately two days per week until on or about October 1, 1982. Respondent's optometric office was located in a Sears, Roebuck retail store next door to the "Sears Optical Department," in which eyeglasses and contact lenses and other optical merchandise could be purchased. Respondent's office was identified by a large sign overhead reading "Optometrist," in the same print as the sign above the Sears Optical Department. In addition, a small plaque on the door leading into Respondent's examination room read "Dr. L. A. Schwartz, Optometrist." During the time he practiced at the 1420 Northwest 23rd Boulevard location of Sears, appointments could be made with Respondent by calling the Sears Optical Department telephone number. The phone was answered "Sears Contact and Lenses Center" by employees of Cole National Corporation, which controlled and owned the Sears Optical Department. The Cole employees were not paid for this service by Respondent. Respondent had no telephone listing in either the yellow or white pages of the Gainesville, Florida, telephone directory between May, 1980, and July 12, 1982, the date of the Administrative Complaint. The Cole National Corporation employees maintained Respondent's scheduling book and made tentative appointments for his prospective patients, although Respondent customarily would call the patient back to confirm the date and time of the appointment prior to the time of the scheduled visit. Respondent's hours of service and fee information were also given to prospective optometric patients by Cole National personnel. Respondent accepted the Sears, Roebuck and Co. credit card as payment for optometric services. Sears then billed the patients directly and Respondent received monies billed to the patients in full through Sears on a monthly basis, regardless of whether the patient paid the bill fully monthly or carried the debt over to succeeding months. Respondent, pursuant to his lease with Cole National Corporation, was precluded from selling optometric supplies to his patients. Rather, Respondent would in all cases issue prescriptions for optometric goods and supplies, such as glasses and contact lenses, which in most cases were placed on a prescription blank bearing his name. At times, however, when Respondent did not have prescription forms available bearing his own name, he would use such a form from the Sears Optical Department, crossing out all references to Sears and inserting his name and address in place of that of Sears Optical Department. On or about February 22, 1982, the Sears Optical Department mailed letters to various consumers in the Gainesville area. These letters, in part, advised that Respondent, an independent doctor of optometry, was available for eye examinations in his private office in the Sears building and that he could be reached for appointments at a telephone number which was listed in the telephone directory for Sears Optical Department. The evidence in this cause establishes that Respondent's office location at all times material hereto was maintained separately from both Sears, Roebuck and Co. and the Sears Optical Department. In addition, the record in this cause fails to in any way establish that Respondent ever held himself out as an employee or representative of either Sears, Roebuck and Co. or the Sears Optical Department. In fact, the record clearly establishes that both Respondent and employees of the Sears Optical Department always indicated to the consuming public that Respondent was an independent optometric practitioner.
Findings Of Fact At all times material to these proceedings, the Respondent Cline was licensed by the State of Florida as a mortgage broker and held license number HB 0017832 from January 13, 1986 through May 31, 1987. During this period of time, Respondent Cline was president and principal mortgage broker for MAC at the 4045 Tamiami Trail, Port Charlotte location. The Respondent was a director and shareholder of the corporation. The Respondent Henderson was also licensed as a mortgage broker and held license number HA 0007460 from March 29, 19856 through June 19, 19889. Respondent Henderson conducted business through MAC as the corporation's vice president. The Respondent was a director and shareholder of the corporation. In response to a consumer complaint, the Department initiated an examination of the books and records maintained at the Port Charlotte location of MAC on April 21, 1987. The conduct of the Respondents in their business dealings as mortgage brokers with MAC was investigated as part of the Department's review process. The examination and investigation involved the time period from March 1, 1986 to June 1, 1987. The written examination report prepared by the Department's financial examiner concludes that the Respondents, as officers and directors of MAC, financially compensated MAC employees who were not licensed under the Mortgage Brokerage Act for soliciting or negotiating mortgage loans. Six alleged mortgage solicitors were named in the report. The loan packages of seventeen mortgages, along with MAC's commission reports, were submitted as evidence to support the conclusion. A review of the documentation, along with a review of the commission checks and the testimony of Kimberly L. Johnson (nee Steed) revealed that the documents identified as "commission reports" were not indicators of commission funds received by the six employees named in the complaint. These employees were paid on a set salaried basis. They were hired by MAC to perform the ministerial acts of taking or typing applications for loans under the direction of a mortgage broker. The use of these employees' names in the commission reports incidentally shows which employee assisted in the completion of forms that resulted in commissions to the licensed brokers who completed the mortgage financing transactions. This interpretation of the "commission reports" is clearly supported by the first page of the reports, Petitioner's Exhibits 17 and Commission checks on the loans, were issued to the licensed mortgage brokers. The evidence demonstrates that Rebecca Henderson, who was one of the employees performing ministerial acts, on one occasion acted beyond her authority and "locked in" the interest rate for a mortgage applicant while she was completing the application. The Department did not present evidence to show that either Respondent Henderson or Respondent Cline had actual knowledge of the employee's actions. Neither licensee was the mortgage broker directing the employee at the time the incident occurred. During the course of the Department's examination, the conclusion was reached that MAC advertised in a newspaper that the corporation was a "mortgage banker" and a "FNMA lender." The Department alleges that MAC is not a "mortgage banker" and a "FNMA lender." At hearing, Kenneth Moulin, a former shareholder of MAC, testified that the goal of MAC was to become a bank. The corporation had money which was used to fund two mortgage loans with MAC as mortgagor. Petitioner's Exhibit 34, which was loan documentation on the residential loan application of William T. Martel and Lora A. Martel, names MAC as the lender. The documents also include FNMA forms used by FNMA lenders. The examination report concluded that MAC did not maintain records for a five-year period. The company started doing business in March 1986. Records were continuously maintained from MAC's inception. An advertisement placed in the newspaper, The Monday Sun, which was published on April 28, 1986, failed to include the phrase that MAC was a "licensed mortgage broker." The advertisement was placed by Respondent Henderson. In mitigation, it should be noted that Respondent Henderson had his mortgage brokerage license for less than one month and was new to the business as it is regulated by the Department. There was no evidence provided to demonstrate that Respondent Cline was aware of the improper advertisement. Other documents provided which purported to be advertisements were not authenticated. They lacked mastheads or headings which could sufficiently identify the place, date or kind of publication. As part of the mortgage financing transactions involved in the sampling of mortgages conducted by the Department, MAC collected fees from applicants for the preparation of documents and reports. Specific fees were quoted to applicants and receipts were clearly marked to demonstrate that the fees were non-refundable to applicants. In its bookkeeping entries, MAC continuously failed to maintain ledger entries which showed that the fees had been assessed on each application, and that the monies had been used for the intended purposes for which they had been collected. In the sampling of mortgages reviewed by the Department, MAC retained money assessed for discount points. The money was not used to reduce the interest rate on mortgages closed, as represented to the borrowers by MAC. Instead, the mortgages were immediately assigned and the discount assessment was retained by MAC for its own, undisclosed use.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Respondent Henderson be issued a reprimand for failure to place the words "licensed mortgage broker" in the April 28, 1986 advertisement. That all other charges against the Respondents be dismissed. DONE and ENTERED this 27th day of November, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerkk of the Division of Administrative Hearings this 27th day of November, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-2202 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #1. Accepted. See HO #2. Rejected. See HO #2. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. See HO #1. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #3. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Document speaks for itself. Also, this is established as proper evidence under Section 494.051, Florida Statutes, so these findings are redundant. Rejected. Report speaks for itself. Accepted. Accepted. Reject the phrase "negotiation." Contrary to fact. See HO #5. Reject the phrase "negotiate." Contrary to fact. See HO #5. 21.-24. Rejected. Contrary to fact. Kimberly L. Johnson is the same person as Kimberly L. Steed who has been licensed as a mortgage broker since September 29, 1986. 25.&26. Rejected. Contrary to fact. See above. This rendering of the testimony is rejected by the fact finder. Accepted. &29. Rejected. Contrary to fact. See HO #5 and HO #6. Accepted. Rejected. See HO #5. Contrary to fact. Accepted. Rejected. Contrary to fact. See HO #5. Accepted. Rejected. Contrary to fact. See HO #5. Rejected. Contrary to fact. Steed completed ministerial acts. See HO #5. Accept the first sentence. Reject the rest as contrary to fact. See HO #5. Rejected. Improper legal conclusion. See HO #12. Rejected. Contrary to fact. See HO #12. Rejected. Cumulative. Rejected. Repetitive. See HO #12. Rejected. Contrary to fact. See HO #12. Accepted. See HO #13. Accepted. Accepted. Rejected. Improper legal conclusion. Appli- cation fees were not set up as entrusted funds. See HO #12. Rejected. Contrary to fact. See HO #8 and #9. Accepted. Accepted. Rejected. See HO #8. Contrary to fact. Accepted. Accepted. Accepted. Accepted. Rejected. Repetitive. Rejected. Contrary to fact. Cline was not the mortgage broker on any of the transactions presented at hearing. Accepted. Accepted. Accepted. Accepted. Rejected. See HO #8 and #9. Accepted. See HO #13. Accepted. See HO #13. Accepted. See HO #13. Respondent Cline's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. Accepted. Rejected. The records presented were found to be reliable when compared with the originals presented simultaneously by Respondent Henderson, although those were not officially placed in evidence. Rejected. See above. Accepted. See Conclusions of Law. Accepted. See HO #3. Accepted. Accepted. Accepted. See HO #5. Accepted. See HO #5. Rejected. Calls for legal conclusion. Rejected. See Section 494.051, Florida Statutes. Accepted. Accepted. Accepted. See HO #8 and #9. Accepted. See Conclusions of Law. Rejected. Irrelevant. See Section 494.051, Florida Statutes. However, the competency of the examiner was considered in the factual determinations made by the Hearing Officer. Accepted. Not listed as factual finding. As a Conclu- sion of Law, the Hearing Officer cannot rule on this matter. Respondent Henderson's proposed findings of fact are addressed as follows: Accepted. Accepted. See preliminary matters. Accepted. Accepted. See HO #2. Rejected. Improper legal conclusion. Unable to rule on proposed finding. Insufficient. 7. Accepted. See HO #5. 8. Accepted. See HO #8. 9.&10. Reject. Insufficient. 11. Accepted. See HO #12. 12. Rejected. Insufficient. 13. Accepted. 14. Accepted. See HO #12. 15. Accepted. See HO #2. 16. Rejected. Conclusionary. 17. Accepted. 18. Accepted. 19.-30. Not listed as factual findings. As Conclusions of Law, Hearing Officer cannot rule on these matters. COPIES FURNISHED: Elsie M. Greenbaum, Esquire Assistant General Counsel Office of the Comptroller 400 West Robinson Street Suite 501 Orlando, Florida 33801 Ann Mitchell, Esquire GERALD DUNCAN ENGVALSON & MITCHELL Foxworthy Professional Building Suite 101 1601 Jackson Street Fort Myers, Florida 33902 Floyd G. Henderson Post Office Box 2875 Port Charlotte, Florida 33949 Charles L. Stutts, Esquire General Counsel Office of the Comptroller The Capitol Tallahassee, Florida 32399-0350 Honorable Gerald A. Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0350
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Cassandra Cook, has filed a claim against the bond for $349.50 alleging that Passport failed to perform on certain contracted services. On April 20, 1989, petitioner received a solicitation telephone call from Global Travel inviting her to purchase a travel certificate entitling her and a companion to a five-day, four-night cruise to the Bahamas. Global Travel was a Tennessee telemarketeer selling travel certificates on behalf of Passport. Petitioner agreed to purchase the certificate and authorized a $349.50 charge on her credit card payable to Global Travel. Thereafter, petitioner received her travel certificate, brochure and video, all carrying the name, address and logo of Passport. In order to use the travel certificate, it was necessary for petitioner to fill out the reservation form with requested dates and return the form, certificate, and a deposit to Passport. Before doing so, petitioner repeatedly attempted to telephone Passport's offices in Daytona Beach to obtain additional information and to inquire about the availability of certain travel dates but was never able to speak to anyone because of busy lines. She then requested a refund of her money and simultaneously filed a complaint with the Department in January 1990. In responding to the complaint in February 1990, Passport denied liability on the ground petitioner was obligated to "deal directly with the company that has charged her credit card as that is who has her money." By then, however, Global Travel was out of business. To date, petitioner has never received a refund of her money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and she be paid $349.50 from the bond. DONE AND ENTERED this 12th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1994. COPIES FURNISHED: Cassandra Cook 3818 Firdrona Drive, N. W. Gig Harbor, Washington 98332 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty, if any, should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a seller of business opportunities registered with the Petitioner, holding registration number 2000-054, and located at 3101 Twenty-Second Avenue South, St. Petersburg, Florida 33712. The Respondent was the successor in interest to American Cash Machine, Inc., and is responsible for fulfilling the obligations of the previous company. At all times material to this case, Gilbert B. Swarts was the president and chairman of the board of the Respondent. On July 8, 2005, the Respondent entered into a contract with Bonnie Campbell as trustee of the Campbell Family Trust (purchaser) under which the purchaser agreed to purchase 36 "CardPayment" machines from the Respondent, and the Respondent agreed to place the machines in appropriate business locations on behalf of the purchaser. As required by the contract, the purchaser paid a total of $135,000 by check to the Respondent. At the time of the sale, the Respondent provided a disclosure form to the purchaser which stated that 200 "CardPayment Business Opportunities" had been sold by the Respondent to other purchasers by the end of 2005 and that 25 "Internet Kiosk Business Opportunity [sic]" had been sold by the Respondent to other purchasers by the end of 2002. The disclosure form also stated that the Respondent would provide to the purchaser, the names, addresses, and telephone numbers of the ten purchasers located closest to the purchaser; however, the disclosure form did not include the information, and the Respondent did not otherwise provide the information to the purchaser. The Respondent stocked the 36 CardPayment machines, but failed to acquire business locations for all of the machines. The Respondent has asserted that after discussions with the purchaser, the parties agreed to "upgrade" the 36 CardPayment machines identified in the contract to 18 Internet Kiosk machines. The Respondent was subsequently unable to acquire business locations for all of the Internet Kiosk machines. The Respondent has asserted that after discussions with the purchaser, the parties agreed to "upgrade" the 18 Internet Kiosk machines to 18 "Smart Terminal" machines. The CardPayment machines, Internet Kiosk machines, and Smart Terminal machines are different types of machines, and each type has a usage different from the others. The terms of the contract executed between the parties did not provide for the substitution of various machines upon failure by the Respondent to place the machines into operation. The contract required the Respondent to rebate a portion of the sales price for each month during which each CardPayment machine was not placed for operation. No contract for the purchase of either the Internet Kiosk or the Smart Terminal machines was executed by the parties. The disclosure information provided by the Respondent to the purchaser related to the Internet Kiosk machines was insufficient to comply with the statutory requirements addressed herein. No disclosure information related to the Smart Terminal machines was provided by the Respondent to the purchaser.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order finding that the Respondent has violated Subsections 559.803(11)(a) and (b) and 559.809(11), Florida Statutes (2005); imposing an administrative fine of $10,000; and placing the Respondent on probation for a period of three years subject to such conditions as the Department deems appropriate. DONE AND ENTERED this 8th day of February, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2008. COPIES FURNISHED: Eric H. Miller, Esquire Department of Agriculture and Consumer Services 2005 Apalachee Parkway Tallahassee, Florida 32301 Gilbert B. Swarts American Cash Machine, LLC 535 Twenty-Second Street South St. Petersburg, Florida 33712 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
